7.

INDEX.

which B. was charged for warehouse rent
from the 30th of August. The jury found
that defendants had not rescinded the
contract of sale: Held, that the assignees
were not entitled to maintain trover to
recover the value of the hops, inasmuch
as in order to maintain that action, the
party must have not only a right of pro-
perty but a right of possession, and that
although a vendee of goods acquires a
right of property by the contract of sale,
yet he does not acquire a right of posses-
sion to the goods until he pays or tenders
the price. Bloxam and Warrington, As-
signees of Saxby, a Bankrupt, v. Sanders
and others, M. 6 G. 4.

BARON AND FEME.

941

Covenant for non-payment of rent, stating
that plaintiff and his wife, since deceased,
demised certain premises to defendant for
years, reddendum to plaintiff and his wife,
24/. per annum, and a covenant to pay
the rent to the plaintiff and his wife.
Averment, that on, &c., the wife died, and
that afterwards, to wit, on, &c., 24l. of the
rent aforesaid became due, and in arrear
to the plaintiff. By the lease, set out on
oyer, it appeared that the reddendum was
to the husband and wife, and the heirs of
the wife, and the covenant to pay rent was
in the same form. Plea, that the prem-
ises were the estate of the wife, and that
the plaintiff had nothing in them but in
right of his wife; that on, &c., she died
without issue, leaving J. A. her heir;
whereupon all the estate of plaintiff
ceased, and J. A. threatened to enter and
eject defendant unless he attorned;
whereby he was compelled to attorn, and
became tenant to J. A. General demur-

rer and joinder: Held, that the plea was
good, for that some interest having pas-
sed by the lease from the plaintiff and his
wife, it could not work by estoppel, and
the defendant was, therefore, entitled to
show that the plaintiff's interest had
ceased; and also that the attornment
upon the threat of eviction was tanta-
mount to an entry by the heir.

three weeks afterwards failed, having had
in his hands during all that time a ba-
lance in favor of the acceptor exceeding
the amount of the bill: Held, that the
latter was not discharged by the omission
to present the bill for payment, the ac-
ceptance being in law a general accept-
ance. Turner v. Hayden und another, E.
6 G. 4.

2. Where in an action by an indorsee
against the indorser of a bill of exchange
dishonored on presentment for payment,
the declaration contained an averment
that the bill was accepted by the drawee:
Held, that this was unnecessary, and that
the plaintiff need not prove it.

v. Bean, T. 6 G. 4

Tanner

312

3. Where in an action by the indorsee
against the maker of a promissory note
payable with interest on demand, the
plaintiff having proved that he gave value
for it, the defendant tendered evidence of
declarations made by the payee when the

4.

Semble, That upon the face of the de-
claration and the deed set out on oyer,
(which was thereby made part of the
declaration,) the plaintiff had no right
of action; for the covenant was to pay 5.
rent to the plaintiff and his wife and her
heirs, and the plaintiff showed the death
of his wife, whereupon the rent was pay-
able to her heir. Hill v. Sanders, (in
error) T. 6 G.

BILL OF EXCHANGE.

529

1. Where the holder of a bill of exchange,
accepted payable at a banker's, but not
made payable "there only," did not pre-
sent it for payment, and the banker about

6.

note

325

was in his possession, that he
(the payee) gave no consideration for it
to the maker: Held, that this evidence
was inadmissible, as the plaintiff could
not be identified with the payee, and the
note could not be treated as over-due at
the time of the indorsement. Barough v.
The owner of a check drawn upon a
White, T. 6 G. 4.
banker for 501., having lost it by acci-
dent, it was tendered five days after the
date to a shopkeeper in payment of goods
purchased to the value of 67. 10s., and
he gave the purchaser the amount of the
check, after deducting the value of the
goods purchased. The shopkeeper the
next day presented the check at the
banker's, and received the amount: Held,
that in an action brought by the person
who lost the check against the shop-
keeper, to recover the value of the check.
the jury were properly directed to find
for the plaintiff if they thought the de-
fendant had taken the check under cir-
cumstances which ought to have excited
the suspicion of a prudent man: Held,
secondly, that the shopkeeper having
taken the check five days after it was
due, it was sufficient for the plaintiff to
show that he once had a property in it,
A notice of dishonor of a bill of ex-
without showing how he lost it. Down
v. Halling, T. 6 G. 4.
330
change, must contain an intimation that
payment of the bill has been refused by
the acceptor, and therefore, a letter
merely containing a demand of payment,
was held not to be a sufficient notice.
Hartley v. Case, the Younger, T. 6 G. 4,

INDEX.

menced actions by original against the
acceptor, and a prior indorser afterwards
took from the acceptor a warrant of at-
torney for the debt and costs, payable by
instalments. (The last of the instal-
ments being payable before the time
when in the ordinary course of proceed-
ings he could have obtained judgment
against the acceptor:) Held, in the ac-
tion against the indorser, that the taking
of the warrant of attorney from the ac-
ceptor being a matter arising after the
commencement of the action, it was no
bar to the action generally, and therefore,
that it was not receivable in evidence
under the general issue.

Quære. Whether the taking of the war-
rant of attorney from the acceptor, was
under the circumstances a giving of time
so as to discharge the other parties to 2.
390
the bill. Lee v. Levy, T. 6 G. 4.
7. The drawer of a bill of exchange be-
came bankrupt and absconded before it
was due, but his house remained open in
the possession of the messenger, under a
commission of bankruptcy issued against
him, for some time after the bill became
due, and before that time, the holder of
the bill had notice that A. and B. were
chosen assignees of the bankrupt's estate.
The acceptor also became bankrupt be-
fore the bill was due, and when due it
was dishonored. The holder did not give
notice of the dishonor to the drawer, or
leave it at his house, nor did he make
any attempt to give such notice to the
assignees of the drawer: Held, that the
bill was not provable under the com-
mission issued against the drawer. Rhode
and another v. Proctor and another, T.
6 G. 4.

BOND.

See ANNUITY.

BRAWLING.

517

Where a suit for brawling in church is in-
stituted before the commissary of the
bishop of the diocese, it may be removed,
by letters of request, into the court of
arches.

by the trustees under and by virtue of
that act, and that the trustees were liable
and ought to repair. Replication, that
the trustees were not liable to repair:
Held, that the bridge being built for pub-
lic purposes in a public highway, the
common law liability to repair attached
upon the inhabitants of the county as
soon as it was built, and that the plea
was clearly insufficient to exonerate
them, as it did not aver that the trustees
had funds adequate to the repair of the
bridge.

Semble, That if that fact had been
averred and proved, still the county
would have been primarily liable, and
must have taken their remedy against
the trustees. The King v. The Inhabit-
ants of Oxfordshire, E. 6 G. 4.

194

The inhabitants of a county are not
bound to widen a public bridge. The
King v. The Inhabitants of the county of
670
Devon, M. 6 G. 4.

BROKER.

See PARTNER, 2.

BUILDING ACT.

Where a party raising a party wall bona
fide intended to comply with the direc-
tions of the building act 14 G. 3, c. 78,
but did not in fact do so, and injured the
adjoining house, the owner of which
brought trespass: Held, that the raising
of the wall was to be considered as done
in pursuance of the statute, and that the
defendant was entitled to the protection
given by the 100th section. Pratt v. Hill-
man and others, T. 6 G. 4.

C.

CERTIORARI.

269

1. Where a certiorari issued to remove a
cause from an inferior court, and the
court below returned a copy of the re-
cord, and not the record itself, this court
quashed the writ and return, and awarded
a procedendo. Palmer and another v. For-
syth and Bell, T. 6 G. 4.

Semble, That brawling was not made
an offence by the 5 & 6 E. 6, c. 4, but was 2.
previously cognizable by the spiritual
Ex parte Williams, T. 6 G.4. 313.

court.

BRIDGE.

1. Indictment against a county for not re-
pairing a bridge in a public highway.
Plea, that by a certain act of Parliament
for amending this road, certain trustees
were directed to lay out the tolls thereby
granted in repairing the roads, and were
impowered to make and repair bridges,
that the bridge in question was erected
VOL. X.-112

401

Where a defendant removes a cause
from an inferior court by certiorari, the
plaintiff is not bound to follow the suit,
and the defendant cannot sign judgment
of non pros for want of a declaration.
Clerk v. The Mayor, &c. of Berwick, M.
6.49
6 G. 4.

CHARTER.

See CORPORATION.

CHECK.

See BILL OF EXCHANGE, 4.
4 F

INDEX.

CHRISTIAN NAME, INITIALS OF.

See PLEADING, 50.

CLERK OF THE PEACE.

See AGREEMENT.

COAL ACT.

See PLEADING, 9.

COMPOSITION, AGREEMENT FOR.
In an action on a promissory note against
a party who had indorsed it for the ac-
commodation of the maker, it appeared
that the plaintiff, the indorsee, had signed
an agreement to accept from the maker
of the note 5s. in the pound in full of his
demand, on having a collateral security
for that sum from a third person. It
further appeared that the agent of the
maker had represented to the plaintiff,
before he signed the agreement, that the
defendant would continue liable for the
residue of the debt secured by the note,
and that the agreement would be void
unless all the creditors signed: Held,
first, that the execution of this agreement
had the effect of discharging the surety;
secondly, that the representations being
as to the legal effect of the agreement,
were immaterial, and had not the effect
of avoiding it; and that as the latter of
them gave to the agreement a meaning
different from that which appeared upon
the face of it, parol evidence of that re-
presentation was not admissible, per
Bayley, J. Lewis v. Jones, T. 6 G. 4. 506

CONSTABLE.

See TRESPASS, 4.

A person is not liable to serve the office of
constable unless he be resiant in the
parish, and therefore, a person occupying
a house, and paying all parish rates in
respect of it, and carrying on the trade
of a printer, frequenting the house daily
on all working days, and sometimes re-
maining there during the night at work,
but not sleeping in the house, is not liable
to serve the office of constable in the
parish where the house is situate. Rex
v. Adlard, M. 6 G. 4.

COPYHOLD.

772

Copyhold lands were granted to A. for the
lives of herself and B., and in reversion
to C. for other lives. A. died, having
devised to B., who entered and kept pos-
session for more than twenty years. On
his death C. brought ejectment: Held,
that the action was barred by the statute
of limitations, for that C.'s right of pos-
session accrued on the death of 4., inas-
much as there cannot be a general oc-
cupant of copy hold land. Doe on the

1. Quo warranto for usurping the office of
bailiff of the borough of Stockbridge,
being an office of great trust and pre-
eminence within the borough, touching
the rule and government of the borough,
and the election and return of burgesses
to serve for the commons in Parliament,
for the said borough. The defendant':
pleas showed that he had been elected to
the office, and traversed "that the office
of bailiff was an office touching the rule
and government of the borough." There
were general replications taking issue
upon all the facts stated
ment to the defendant's traverse, but they
as induce.
did not notice the traverse) and specia
replications setting up various customs
as to the election of bailiffs of the bo-
rough. Demurrer and joinder: Held,
that the defendant not having traversed
that the office "was one of great trust
and pre-eminence within the borough
touching the election and return of bur-
gesses to serve in Parliament," had ad-
mitted it to be so, and that for such an
office a quo warranto would lie; and,
secondly, that the general replications
being clearly good, and the demurrer
being to all the replications, judgment
must be given for the crown.

Quære, Whether the special replica-
tions were good. The King v. M Kay, T.
6 G. 4.
2. Information in the nature of a quo war-
351
ranto for usurping the office of mayor of
Monmouth. Plea, that the defendant was
duly elected according to the governing
charter of the borough. Replication that
there were two candidates; that fifty
good votes tendered for the losing candi-
date were improperly rejected; and that
thirty-eight persons, who had been un-
duly elected and admitted as burgesses,
were received as voters for the defend-
ant, and that a majority of the legal votes
tendered was in favor of the other candi-
date. On demurrer, held, that the repli-
Ication was bad, for it was only an argu-
mentative, and not a direct denial of the
validity of the defendant's election; and
also for that it attempted to put in issue
facto) which cannot be done in an infor-
the title of the electors (corporators de
mation against the elected. The King
Information for usurping the office of
v. Hughes, T. 6 G. 4.
368
burgess of the borough of M. Plea, first,
that M. is an ancient borough, and the
burgesses a corporation by prescription,
consisting of an indefinite number; that
from time immemorial, a court has from

3.

INDEX.

time to time been holden (amongst other
things) for the election of burgesses, and
notice of holding the court has been im-
memorially given by ringing a certain bell
within the town and borough; and that the
burgesses, or so many of them as choose,
have a right to attend that court; and
being present attending there, have elect-
ed, and have a right to elect at their dis-
cretion, such persons to be burgesses as
they think fit; that before the informa-
tion, to wit, on, &c., notice of holding the
court was given by ringing the bell, that
, the court was holden, and the defendant
elected a burgess. Plea, second, set out
a charter of Ed. 6, and that from the time
of the charter the mode of electing bur-
gesses hath been for the mayor, bailiffs,
and burgesses, being met and assembled
for that purpose at a certain court holden
in and for the town and borough, before
the mayor and bailiffs, (notice having
been given of holding the said court by
the ringing of a certain bell within the
town and borough,) have elected bur-
gesses at their discretion; that the may-
or, bailiffs, and burgesses being in due
manner met and assembled at the said
court, holden before the mayor, &c., for
the election of burgesses (notice having
been given of holding the court by ring-
ing the bell) elected defendant a burgess.
Plea, third, recited the charter, and aver-
red that it contained no direction as to the
election of burgesses; that the mayor,
bailiffs, and burgesses, &c., met and as-
sembled at a court holden before the
mayor, and bailiffs, for the election of
burgesses (notice having been given of
holding the court by ringing a bell)
elected the defendant a burgess. Plea,
fourth, that the mayor, bailiffs, and bur-
gesses being met and assembled for that
purpose at a meeting of the corporation
at the Guildhall, have from time imme-
morial elected burgesses; and that notice
of holding such meeting during all the
time aforesaid hath been given, and
ought to have been given, by ringing a
certain bell within the said town and bo-
rough. Pleas, fifth and sixth, varied
from the second and third, only by sub-
stituting "met and assembled for that
purpose at the Guildhall," for "at a cer-
tain court holden, &c." Seventh plea,
set out a custom to hold a court before
the mayor and bailiffs every Monday, and
that the burgesses for the time being
"being met and assembled for that pur-
pose," at the said court, have elected bur-
gesses; that on, &c., the said court was
holden for the election of burgesses, and
that the burgesses "then and there so
met and assembled together as afore-
said," elected the defendant. Plea, eighth,
set out a non-existent bye-law, providing
for the election of burgesses in the same

4.

mannner as by the custom set out in the
first plea: Held, that all the pleas were
bad. The first six and last, because the
notice by the ringing of the bell of hold-
ing the courts or meetings in those pleas
mentioned as there described, was not a
reasonable notice of the courts or meet-
ings, or of the purposes for which they
were holden, and was therefore insuffici-
ent; and the seventh, because it did not
state that the Monday's court, was always
holden for the purposes of election; and
notice of the intended election was not
stated as a part of the custom, which was
therefore unreasonable. Secondly, be-
cause the defendant did not in stating his
election, bring himself within the cus-
tom. Replication to the seventh plea, that
the burgesses met and assembled at the
said court as in the seventh plea menti-
oned, were not in due manner met and
assembled for the election of burgesses.

General demurrer and joinder, semble,
that this replication was good. The King
v. Hill, T. 6 G. 4.

426

The 59 G. 3, c. 12, s. 17, vests in the
churchwardens and overseers of the poor,
in the nature of a body corporate, all
buildings, lands, and hereditaments be-
longing to the parish: Held, that in order
to constitute the body corporate, intended
by the act, there must be two overseers
and a churchwarden or churchwardens,
and that where there were two overseers
appointed, one of whom was afterwards
appointed (by custom) sole church war-
den, the act did not vest parish property
in them. Woodcock v. Gibson and others,
462

T. 6 G. 4.
5. A charter granted by the crown to a cor-
poration, cannot be partially accepted,
whether it be a charter of creation, or
granted to a pre-existing corporation.

The power to make bye-laws is inci-
dent to the whole body of every corpora-
tion, and therefore, if a charter give to a
select body, power to make bye-laws
touching certain matters therein specified,
that does not take away from the body
at large their incidental power to make
bye-laws touching other matters not spe-
cified in the charter.

Where a corporation consisted of
mayor, bailiffs, aldermen, and burgesses,
(of whom the bailiffs and aldermen were
chosen out of the burgesses, and formed
a common council,) and the charter gave
to the mayor and burgesses power to
elect burgesses, and the corporation a
large made a bye-law vesting the right to
elect burgesses in the mayor and com-
mon council: Held, that the bye-law was
good, the burgesses at large being repre-
sented by the common council, inasmuch
as the bailiffs and aldermen who com-
posed the common council, were elected
from amongst the burgesses, per Holroyd